WTO Dispute Settlement Mechanism(2)/刘成伟(32)
As to the second type of situation, the only situations effectively covered by the DSU are those that an identifiable WTO member is capable of correcting. Because Article 26.2 of the DSU stipulates in relevant as: “as a result of the existence of any situation other than those to which the provisions of paragraphs 1(a) and 1(b) of Article XXIII of GATT 1994 are applicable”, if the situation is brought about by the application of a measure by a WTO member, Article XXIII:1(a) or (b) would apply. The recourse to Article XXIII:1(c) is therefore only necessary if the situation is the result of a failure of a WTO member to apply a measure. When examining situation complaints, the panels would therefore have to determine not only whether there was a reasonable expectation that the situation would not occur but also whether there was a reasonable expectation that the government would intervene to correct this situation.
However, there is little common understanding among WTO members as to the circumstances calling for government intervention in the economy and therefore a finding that a reasonable expectation that the respondent would have intervened to prevent such circumstances would be very difficult to make. Nevertheless, the drafters of the WTO Agreement did not abandon the concept of nullification or impairment under such situations other than those to which the provisions of paragraphs 1(a) and 1(b) of Article XXIII of GATT 1994 are applicable.
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